Ross Allen Hartwell v. State

• Court: Court of Appeals of Texas
• Decided: June 11, 2015
• Docket: 13-14-00087-CR
• Status: Published

Opinion

ACCEPTED 13-14-00087-CR THIRTEENTH COURT OF APPEALS FILED CORPUS CHRISTI, TEXAS 6/11/2015 4:57:37 PM IN THE 13TH COURT OF APPEALS CECILE FOY GSANGER CORPUS CHRISTI - EDINBURG CLERK

6/11/15 CECILE FOY GSANGER, CLERK No. 13—14—00087—CR BY DTello RECEIVED IN 13th COURT OF APPEALS IN THE TEXAS COURT OFCORPUS APPEALSCHRISTI/EDINBURG, TEXAS THIRTEENTH DISTRICT 6/11/2015 4:57:37 PM AT CORPUS CHRISTI / EDINBURGCECILE FOY GSANGER Clerk

ROSS ALLEN HARTWELL v. THE STATE OF TEXAS

Appeal from Cause Number D-1-DC—13—904031 Transferred from the Third Court of Appeals, No. 03—13—00825—CR 390th Judicial District Court, Austin, Travis County, Texas Honorable Bob Perkins, Visiting Judge Presiding

APPELLANT’S REPLY BRIEF

TO THE HONORABLE THIRTEENTH COURT OF APPEALS:

Comes now Appellant Ross Allen Hartwell, by and through his appointed counsel Paul M. Evans, and files this, his Appellant‟s Reply Brief, in compliance with the Texas Rules of Appellate Procedure.

Respectfully submitted,

___/s/ Paul M. Evans_____________ Paul M. Evans Attorney for Appellant 811 Nueces Street Austin, Texas 78701 (512) 569-1418 (512) 692-8002 FAX paulmatthewevans@hotmail.com SBN 24038885

1 Table of Contents

Table of Contents 3

Index of Authorities 3

Reply to Appellee‟s “Reply Point Two” [Appellant‟s 3 Issue Number Two]

Prayer 6

Certificate of Service 6

Certificate of Compliance 7

Index of Authorities

Texas State Statutes

Code of Criminal Procedure §35.16………………………………………......3

Code of Criminal Procedure §35.21……………………………………...…...4

Code of Criminal Procedure §35.22……………………………………...…3-4

Texas Cases

Jackson v. State, 877 S.W.2d 768 (Tex.Crim.App. 1994)…………………….4

Robinson v. State, 16 S.W.3d 808 (Tex.Crim.App.2000)……………….….....5

Smith v. State, No. 03-07-00392-CR, 2009 Tex. App. LEXIS 5468 (Tex.App.—Austin 2009, pet. ref‟d)……..………………………….………..4

Thompson v. State, 9 S.W.3d 808 (Tex.Crim.App.1999)………….…….……5

2 Reply to Appellee’s “Reply Point Two” [Appellant’s Issue Number Two]

The State has made the following assertion in the Appellee‟s Brief regarding

Jury Panelist No. 2 (Rodriguez), whose service on the jury forms the heart of

Appellant‟s claim of ineffective assistance of counsel, raised as Issue Number Two

in the Appellant‟s brief:

“As an initial matter, the State asserts that Rodriguez was not subject

to a challenge for cause simply because he agreed that he would be disturbed

by graphic evidence. See Tex. Code Crim. Proc. Art. 35.16 (listing

challenges for cause).”

Appellee‟s Brief at 23; see Appellant‟s Brief at 13, 44-51.

Rodriguez not only stated he would “be disturbed by graphic evidence.” He

clearly and eloquently expressed that such evidence would keep him from being

fair and objective. RR6 147-9. Tex. Code Crim.Proc. § 35.16 (c)(1) provides that

the defense may make a challenge for cause when a panelist “has a bias or

prejudice against any of the law applicable to the case upon which the defense is

entitled to rely, either as a defense to some phase of the offense for which the

defendant is being prosecuted or as a mitigation thereof or of the punishment

therefor.” Appellant would argue that Rodriguez‟s answers demonstrate that he

would not be able to follow the oath of the jury, as provided by Tex. Code

Crim.Proc. § 35.22: “When the jury has been selected, the following oath shall be

3 administered them by the court or under its direction: „You and each of you do

solemnly swear that in the case of the State of Texas against the defendant, you

will a true verdict render according to the law and the evidence, so help you God.‟”

Evidently the trial court agreed with this position, as the five panelists who agreed

with Rodriguez‟s opinion were in fact discharged after they were challenged for

cause. RR6 149-55, 169-75. As provided by Tex. Code Crim.Proc. § 35.21, “[t]he

court is the judge, after proper examination, of the qualifications of a juror.”

The State has supported its argument by citing Jackson v. State, 877

S.W.2d 768, 769 (Tex.Crim.App. 1994) and Smith v. State, No. 03-07-00392-CR,

2009 Tex. App. LEXIS 5468, at *1-15 (Tex.App.—Austin 2009, pet. ref‟d)

(mem.op., not designated for publication). In both cases, the juror in question

mentioned only a probability of bias. In neither case did the panelist in question

express him or herself as emphatically as Rodriguez did in the instant cause.

Further, also unlike these two cases cited by the State, trial counsel‟s

strategy in the instant cause was readily apparent from her voir dire presentation: to

remove any juror who felt that the ability to be fair and objective would be

compromised by the presentation of graphic evidence. See RR6 138-69. No

speculation as to strategy is required. Without citation to authority, the State makes

the assertion, “it looks like keeping Rodriguez on the panel was a strategic decision

because trial counsel did not use all of her peremptory challenges.” Appellee‟s

4 Brief at 25. If trial counsel felt as a matter of strategy that her other available

options were even worse than Rodriguez, it would make much more sense if trial

counsel had in fact exercised all of her allotted strikes.

Appellant would also point out that in Reply Point Eight, the State has

essentially conceded that trial counsel failed to adequately investigate and research

the validity of one of the enhancement paragraphs of the indictment prior to trial.

See Appellee‟s Brief at 40-7.

While Appellant presently stands by all of the issues presented in the

Appellant‟s Brief, Appellant urgently prays that this Court recognize the instant

cause as “the rare case where the record on direct appeal is sufficient to prove that

counsel‟s performance was deficient,” and as such, this Court “should obviously

address the claim in the first instance.” Robinson v. State, 16 S.W.3d 808, 813 n. 7

(Tex.Crim.App.2000), citing Thompson v. State, 9 S.W.3d 808, 814

(Tex.Crim.App. 1999).

5 PRAYER

WHEREFORE, PREMISES CONSIDERED, for the reasons stated above,

Appellant prays that this Court find his conviction to be in error, and that this

Court reverse the judgment of conviction and remand the cause to the trial court

for a new trial. Appellant prays for all other general relief to which he may be

entitled.

__/s/ Paul M. Evans__________ Paul M. Evans 811 Nueces Street Austin, Texas 78701 (512) 569-1418 (512) 692-8002 FAX SBN 24038885

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the above and foregoing

Appellant‟s Brief was delivered by e-service facsimile to the office of the District

Attorney of Travis County, on the 11h day of June, 2015.

___/s/ Paul M. Evans_____________ Paul M. Evans

6 CERTIFICATE OF COMPLIANCE

Relying on the Microsoft Word 97-2003 Document word count utility, I

hereby certify that the present document contains 1055 words, all contents

included.

___/s/ Paul M. Evans_____________

Paul M. Evans